McGuire v. Department of Aging

592 A.2d 830, 140 Pa. Commw. 378, 1991 Pa. Commw. LEXIS 332
CourtCommonwealth Court of Pennsylvania
DecidedJune 7, 1991
Docket425, 426 C.D. 1990
StatusPublished
Cited by10 cases

This text of 592 A.2d 830 (McGuire v. Department of Aging) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McGuire v. Department of Aging, 592 A.2d 830, 140 Pa. Commw. 378, 1991 Pa. Commw. LEXIS 332 (Pa. Ct. App. 1991).

Opinions

[380]*380KELLEY, Judge.

Daniel E. McGuire and Robert Daniel Ainscough (petitioners) appeal from separate orders of the State Civil Service Commission (commission) which denied petitioners’ requests for a hearing based on allegations of discrimination involving the issuance of written reprimands by their employer, the Department of Aging (DOA).1 We affirm.

Petitioner McGuire is a regular status civil service employee who works for DOA as an Aging Services Supervisor. Petitioner Ainscough is a regular status civil service employee who works for DOA as the Director of the Bureau of Program and Field Operations.

In December of 1989, the Secretary of Aging, Linda M. Rhodes, issued separate letters captioned “written reprimand” to petitioners in which she reprimanded each petitioner for his role in obtaining a copy of a newspaper article and for his later use of that article to demean and embarrass two senior colleagues. The Secretary stated that the purpose of the reprimands was to alert each petitioner to the findings of the Inspector General regarding his actions, and to inform him that his conduct was not only inappropriate, but also actionable.

The Secretary further informed each petitioner that the reprimand would go into his personnel file and would remain there for one year. If, at the end of that time, there were no further incidents which would warrant any form of employment discipline, the letter would be removed from the file. The Secretary warned, however, that if such behavior continued, she would “take further disciplinary action, which could result eventually in termination of ... employment.”

Each petitioner timely appealed his written reprimand to the commission, asserting that the action was discriminatory in that it was based on political affiliation and other non-[381]*381merit factors.2 On January 29, 1990, the commission, in separate orders, denied both appeals on the ground that a written reprimand was not an appealable personnel action pursuant to the Civil Service Act (Act).3 Petitioners now request that this Court review those determinations.

The sole issue in this case is whether a written reprimand constitutes an appealable personnel action under the Act. Section 905.1 of the Act, 71 P.S. § 741.905a,4 provides:

No officer or employe of the Commonwealth shall discriminate against any person in recruitment, examination, appointment, training, promotion, retention or any other personnel action with respect to the classified service because of political or religious opinions or affiliations because of labor union affiliations or because of race, national origin or other non-merit factors.

(Emphasis added.)

The Act itself does not define “personnel action”; however, the commission has promulgated regulations, found at 4 Pa.Code § 105.2, which include a list of such actions. The actions which require written notice under Section 105.2 are:

(1) Appointment.
(2) Promotion.
(3) Removal.
(4) Suspension.
[382]*382(5) Demotion.
(6) Furlough.
(7) Retirement.
(8) Resignation.
(9) Transfer.
(10) Reassignment.
(11) Leave of absence.
(12) Extension or reduction of probationary period.
(13) Compensation changes, except salary increments, general pay increases, or special pay for such things as overtime or out-of-class work.
(14) Performance evaluation.

We have held that the above list is not an exclusive listing of all personnel actions appealable under Section 905.1 of the Act. Department of General Services v. Johnson, 45 Pa.Commonwealth Ct. 245, 405 A.2d 596 (1979). The fact that reprimands are not listed is therefore not dispositive. Petitioners argue that a written reprimand is a form of disciplinary action which can change the status of an employee, either immediately or in the future, thereby making it analogous to a negative performance evaluation report (PER) which is specifically listed as a personnel action under Section 105.2 of the regulations, 4 Pa.Code § 105.2. The commission, on the other hand, argues that the written reprimand is not analogous to a PER, but rather a legitimate exercise of managerial discretion, the utility of which would be impaired if found to be an appealable personnel action.

We note that our scope of review in civil service cases is limited to a determination of whether constitutional rights have been violated, an error of law was committed, or necessary findings of fact were unsupported by substantial evidence. Ross v. Civil Service Commission, 98 Pa.Commonwealth Ct. 565, 511 A.2d 941 (1986).

The purpose of the Act is set forth in Section 2, 71 P.S. § 741.2, which states:

[383]*383Greater efficiency and economy in the administration of the government of this Commonwealth is the primary purpose of this act. The establishment of conditions of service which will attract to the service of the Commonwealth qualified persons of character and ability and their appointment and promotion on the basis of merit and fitness are means to this end.

The Act, therefore, has the dual purpose of promoting efficiency and economy while ensuring that personnel actions are taken on the basis of merit, and not discrimination. As one commentator has put it:

Certainly, persons will be more attracted to government service if they believe they are treated fairly, but greater efficiency of administration will not be achieved if appointing authorities are required to defend, against a charge of discrimination at a full blown due process hearing, every minor decision. To construe “personnel action” too broadly is to usurp management decisions____ Thus, the considerations of fair treatment of the employee and decision-making rights of management must be balanced cautiously.

Rand, An Examination of Discrimination Under The Pennsylvania Civil Service Act, 25 DUQ.L.REV. 209, 219 (1987).

We agree that the balance must be cautiously maintained, but believe that in this case, it tips in favor of management. It is generally conceded that not all actions by management are appealable. Actions such as a determination of which employee is assigned to a more desirous office space or assignment or change of routine duties are actions which, even if proved to be motivated by discrimination, would not trigger a hearing. In these instances, the balance weighs in favor of managerial discretion.

Petitioners seek to analogize the reprimand to a PER, which is an appealable action. A PER, however, is a formal document which remains in the employee’s personnel file.

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McGuire v. Department of Aging
592 A.2d 830 (Commonwealth Court of Pennsylvania, 1991)

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Bluebook (online)
592 A.2d 830, 140 Pa. Commw. 378, 1991 Pa. Commw. LEXIS 332, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcguire-v-department-of-aging-pacommwct-1991.